A couple weeks ago, I wrote a post for the NC Law Blog entitled “What Contact Information Must a Non-Traditional Law Firm Provide?“. The post discussed how more non-traditional law offices are opening up, many of them delivering legal services online, and how this is raising the question of how to comply with residency requirements, bona fide office rules and providing accessible contact information for a firm that may not have a physical office location in the jurisdiction to which the legal matter pertains. In the past, I’ve written about how residency requirements can be a barrier to entry for a virtual law practice: “Residency Requirements and the Virtual Law Practice.”
Last week brought good news on this front. A U.S. District Court Judge in the North District of New York issued an opinion finding that New York’s Judicial Code Section 470 (which creates a residency requirement for members of the NY Bar) infringed on an attorney’s right to practice NY law. Section 470 was last reenacted in 1945 and hasn’t been changed since then. An overhaul was long overdue.
In a nutshell, the court found New York’s residency requirement to be unconstitutional. For a great summary of the opinion read Carolyn Elefant’s post and follow the link out to the full opinion. This decision comes down from the interesting case of Attorney Ekaterina Schoenefeld who filed a lawsuit against the State of New York claiming that by requiring an attorney to maintain a physical law office in the state, New York law discriminates unconstitutionally against attorneys who are out-of-state.
What I most enjoyed about this opinion was the judge’s willingness to reconsider how we define accessibility in an age when almost all of us are connected online. As long as the attorney is transparent about where he or she is actually located and working on the client’s legal matter, the question of the need for physical location within the jurisdiction should be based on the needs of the client, the case, and the surrounding circumstances. As the opinion notes, it would have been more physically convenient for an attorney working in NJ to drive over to courthouse in NY City than it would be for an attorney in Buffalo to drive down. (page 18 of the opinion)
Even if it is appealed to the Second Circuit, the fact that this issue has been brought to the forefront and reconsidered as a requirement for members of the NY Bar may prompt other states to revisit the effectiveness of their existing residency requirements. As more virtual law offices spring up across the country, it will continue to be a question they will need to address.
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